Published 9 February 2018
Arbitration is a creature of contract. This is the number one unshakeable and non-derogable rule of international commercial arbitration...or is it not?
The basic notion of the book Rethinking International Commercial Arbitration Towards Default Arbitration by Gilles Cuniberti is that the majority of international commercial disputes are settled through arbitration and thus it should be a default forum for hearing such cases. Currently, the gateway to arbitration lies in an agreement that parties will resolve their disputes in arbitration and not in national courts. In absence of such an agreement, the proper forum is a national court. However, if international commercial arbitration is indeed the ideal forum for international commercial disputes, should the parties be facing a challenge of concluding a valid arbitration clause or should we make the arbitration a default forum? The book is advocating for this change to happen.
The book is divided into six parts. In the first part, Professor Cuniberti discusses advantages of arbitration and reasons why we should promote it; the second part maps the decline of the consent requirement in investment treaty arbitration, domain name arbitration, and modern national arbitrational laws; the third and fourth parts of the book provide the legitimacy basis of international arbitration as well as constitutional constraints of adopting arbitration as a default forum; the fifth part proposes different models of such default arbitration, and the sixth part is dealing with implementation of the proposed models.
Rethinking International Commercial Arbitration Towards Default Arbitration; Gilles Cuniberti; 256 pp, 2017, ISBN: 978 1 78643 239 1; Edward Elgar Publishing.